Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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Suspect it had more to do with her schedule at the time and wanting to decide the immunity motion far enough in advance of the trial to provide a cushion minimizing to the maximum extent possible the influence of a decision denying immunity on seating a fair and impartial jury.

Not saying she had already made up her mind about immunity.

Saying she had to consider that possibility in deciding when to schedule the hearing.

a rational person with no agenda examining the evidence could not possibly conclude this was self defense……there is NO physical evidence showing fogen’s life was ever in any danger on any level(other than him shooting himself)!

My thought is that she already told the defense team that no extension of time will be granted. If he does attempt to file for an immunity hearing closer to the trial date, she should deny his request directly based on his disrespect to the court.

A pre-trial hearing should not be needed to determine if his request is approved or denied, and he should be put to bed without dessert!

Attempting to circumvent her ruling, which denied an extension of time, in my opinion, would be utterly disrespectful on the part of the defense. It’s one thing to disrespect the judicial system with some of their antics; it’s another thing to show blatant disrespect to her honor. In that courtroom, she’s the momma!

as the law is written, i do not know how she could deny a motion for an immunity hearing as the defendant is entitled to it under state law; it is his right. how nelson chooses to deal with this situation should it arise should be interesting.

Could the defense be considered to have abandoned their right to an immunity hearing, by failing to meet the courts deadline? Obviously the court cannot consent to hold a trial that would be fatally flawed from the outset, but only if the people were to win, since that would be no trial at all. A trial where the defense can win, but a do over is required if they lose?

I think Nelson was helping O’Mara save face. Instead of saying, “Are you giving up on that immunity hearing, Mr. O’Mara” and putting him on the spot, she asked “Do you still want that time set aside?” so he could say NO without admitting he’s giving up on the immunity hearing. THEN he won’t make a motion to “roll it into the trial” because that motion would not work and it would make him look, to the Treepers, like a big loser. So he and the judge will both continue to pretend that it would be POSSIBLE for him to try to roll it into the trial when they both know that (a) that will not be possible and (b) he had to give up on the SYG hearing but he didn’t want to say so right out like that and look like the ass he is.

I am predicting two things:
PTSD motion; and/or
Plea bargain that hides a LOT of the evidence but that sends Fogen away for quite a while.

Good points. I don’t think there will be a PTSD motion because although Fogen is beginning to see the seriousness of his situation, he still lives in lala land with all his new donations. This this makes him feel safer and more hopeful that the jury sees it the same way paying supporters do. Full speed ahead!

i believe i can handle this one, fred will correct me if i should post in error.

the defense will call the detective who was present during the questioning of the defendant to ‘lay the foundation’ for presenting any statement or portion thereof. the detective will state his/her credentials, identify the statement or video, if warranted, and proceed to answer any questions raised on examination or cross examination.

this is where the prosecution has great advantage as the detective can be asked all kinds of questions regarding the defendant’s demeanor and state of physical well being. juries tend to find statements by detectives to be compelling (unless the defense is able to annihilate their testimony – think mark fuhrman).

because such testimony can be so damaging to the defendant, it is advisable that one never offer any statement and only ask to consult with an attorney upon being questioned. they are not fooling when they say ‘anything you say can be used against you’ and what they do not tell you is that absolutely nothing you say can be used for your benefit because it would be hearsay. the defendant must present any statements which would present his case.

i am not a lawyer but it seems to me the prosecution simply present the FACTS that indeed fogen did shoot martin establishing that fact, then present the autopsy evidence showing it is not possible that martin punched fogen 30 to 40 times, smashed his head repeatedly and tried to smother him, establishing that these things are NOT possible without leaving evidence all over martins hands….after this it seem the defense would then be forced to show exactly how this was self defense? also they can show the pictures from the police station and the reports from the medics on the scene again showing there was NOTHING life threatening about any of the minor injuries and NOTHING whatsoever has ever been shown that Martin had anything at all to do with any of those minor injuries.

Thanks for the post, professor. The idea behind immunity is to establish whether the defendant is immune from prosecution. It seems that O’Mara is defeating that provision by combining it with trial because that is exactly what immunity is to prevent. If he thinks that he can motion for immunity after the State puts on its case in chief, that is almost a guarantee of being denied.

I have an odd theory as to the defense’s tactic here, and sicne I am not a lawyer wanted to ask the Prof about it.

It seems to me that one possible prosecution strategy is to present a very stripped down simple case at first using only the NEN call recording, the shell casing/body and the location of the body (some distance from the clubhouse) to present this vey basic narrative:

That the defendant profiled, pursued and then shot the teen after leaving his car with a loaded gun, and some time shortly after encountering him. Whatever occurred at that time in the dark with no real witnesses, whatever aggression on anyone’s part this still adds up to murder. If the teen attacked the man, it was in self defense on his account after being threatened and stalked, and if the defendant detained the teen or tried to, then that’s just proof that he has a depraved mind, broke the law and the jury must convict.

The the prosecution would remind the jury that whatever they were about to hear from the defense, the state was prepared to refute thoroughly as a pack of lies, using his own statements to the police as evidence, as well as videos, GPS, experts, Dee Dee, etc etc. Meaning that all the complex evidence would only be brought in as needed depending on how the defense tried to assert itself, either by arguing “it was self defense” (and having Fogen testify) or by simply saying “there exists reasonable doubt/ the state has not proven it’s case.”

This prosecution stripped down narrative would be crafted in a manner to “draw out” the defense into being forced either to put GZ on the stand or to simply hope that a jury would not convict even though the defense could not really use the phrase”self defense” since they don’t have a way to introduce the concept.

It’s my understanding that if the prosecution doesn’t present the SPD interviews/statements then the defense cannot enter them as evidence either. Is this true, and why is that?

If I’m right so far, and I am not sure that I am, but if I am…

Then the defense’s attempt to “roll the immunity hearing into the trial” is a way for them to draw out the prosecution into presenting the statements from SPD into the case by forcing the state to present it’s case first and to cover all the bases somehow, in case the judge might be tempted to summarily dismiss the case after the prosecution rested (rested its stripped down case that is) and the defense filed a motion asking for a dismissal NOT on immunity grounds via self defense but simply because there is a longshot the state “hasn’t proven M2 BARD” .

Short version: is MoM bluffing the state into (for sure, at first) introducing the statements to SPD so they can use them instead of having the defendant take the stand somehow?

the defense could not enter any of the defendant’s statements without calling the defendant as a witness. the defendant must verify his own statements, otherwise they are considered ‘hearsay’. i am quite certain that defending counsel does not want to call the defendant as a witness because it leaves him open to cross examination.

Willisnewton, speaking of the NEN call,
.
I think when George quietly said “These a$$h@les….they always get away” that he was thinking how the suspects he had reported to NEN in the past, had always gotten away before the police arrived.
.
I think that comment indicates that gz was feeling the system was flawed, and that he was deciding to do things differently the evening of February 26, 2012.
.
And, he did do things differently that evening = GZ did not wait for the police to arrive and investigate but instead took matters into his own hands.

You all have thoughtful…
I believe that I read/heard one of George’s friends actually say as much someteime not too long ago. It may have been Traffe, saying that following the “rules” was not taking care of things. He was even noting that even with the Martin shooting there had been another break-in

It was a rather sad sort of comment–as if he believed that shooting a kid was going to scare away all the burglars.

When GZ said “these axxholes always get away” he is referring to BOTH the prior people who _allegedly_ committed crimes AND the unarmed teen walking home. It’s pretty clear and not hard for a jury to understand that he is conflating the two – guilty persons and an innocent-until-proven-guilty person. That’s pretty much the textbook definition of profiling.

Yes, and WillisNewton, remember what papa Fogen said: his son was not racist. Had there been Asians burglarizing the neighborhood, his son would have been suspicious of an Asian guy walking in the rain. See how non-racist that is? He’s an equal opportunity profiler!

This is how I see the state presenting the case before any rebuttal from defense

1) That Trayvon went to 7-11 to buy candy. They can also talk to the little brother and he would confirm that and was coming back home.

2) The defendant started stalking and harassing and threatening the safety of the victim, which is proven by the NEN phone call.

3) Show the GPS records to prove Trayvon’s whereabouts

4) Combining the GPS, Trayvon’s phone records, and the NEN call, it would show that the defendant began and created the altercation by the clubhouse

5) Show where the body is in relation to the clubhouse and the phone calls. It will show the victim tried to go home and the defendant traveled quite a distance to go in the same direction as the victim, where he eventually killed the victim

Only the defendant’s own “testimony” claims to refute that, because without his testimony, the evidence shows, he profiled a kid for walking home from 7-11 with candy, the defendant stalked, and terrorized and chased the kid with a gun that he grabbed from his wife, he eventually caught up to the kid and killed the kid

The defendant is the one claiming all that double back circle blacck dynamite nonsense, so that does not get weighed, unless he testifies under oath and cross examination

if the defendant testifies, the prosecution will massacre him with all his lies and inconsistencies and contradictions

if the defendant tries to make up a new story, they can compare it to his other stories and it will show the defendant is not truthful, due to the fact he told so many stories and lies

Yes, that is what I am also saying, above. But I then go on to posit a possible way that the defense can “force” the prosecution to enter in the SPD statements when they first present their case and then use the same statements to argue that it was self defense without ever calling the defendant to the stand.

I’m asking if this is possible/ allowed under the rules of a trail.

If and when his statements to SPD are entered into evidence,
I think he will be proven a liar, specifically in his actions leading up to the “missing minutes” which would seem to sink his chances with a reasonable judge/jury, but what I’m imagining the defense is hoping that they can at least get the “notion of self defense” presented to the jury by having them hear the SPD narrative. Plenty of people on the inter-webs have heard his false narrative and chosen to believe him. Perhaps some jurors would too. If this case has shown me anything at all it is that some people simply close their minds to reason and logic when it comes to handguns and their fantasies about “a good shoot,” which I see as the heart of darkness they harbor that allows them to “believe” GZ’s contradictory statements.

I know in my heart of hearts that GZ chased TM down TTL with his car before he got out and ran behind him on foot. And I know he lied to SPD investigators to omit and obscure this car to pedestrian chase.

But I couldn’t tell you with any certainty what happened in the missing minutes. That’s “reasonable doubt” possibly, to many. Depends on how both sides present the case.

And he’s innocent until PROVEN guilty. He’s guilty of lying to investigators. He’s guilty of harassing and profiling and chasing. And I think he’s established a PATTERN of lies that SEEM to extend into his account of what happened in the missing minutes. But can it be PROVEN that he was acting illegally when he shot the unarmed teen? it’s going to be a different type of proof – circumstantial evidence that will get the state a conviction whereas I see the other points as empirically proven with hard evidence and deductive reasoning that is rock solid.

Fogenhats’ statements do not fall under any exceptions to the hearsay rule and he has to testify to them in open court and submit to cross examination, otherwise, his testimony is struck as hearsay

The state said long ago that they will not allow the defense to submit his statements or interrogations for him and besides if the defense does, it is hearsay, and thereby struck out to be weighed within context of what happened

They can only claim self defense if Fogenhats testifies

The defense can not submit anything for the defendant, in terms of his testimony

If the Fogenhats does not testify, it means his claims have not been authenticated, therefore, his testimony can not be weighed, and any juror that does weigh his testimony without it being submitted and admissible during trial will have broken the trust of a juror

bottom line, he gets nothing for his claims, because in court, everything becomes under a microscope and subdued to be authenticated or else it is not acceptable to be weighed because it is hearsay

Fogenhats can say anything, and unless it is under oath and has been cross examined for credibility, it is hearsay

Let’s be honest, people can say anything and they could be blowing smoke

LLMPapa,
Extraordinary !
Front to back gunshot wound with no deviation in trajectory. Entry wound 1″ left of midline, 1/2″ below the left nipple. The evidence for conviction is contained in the Medical Examiner’s Autopsy Report. This will be explained to the jury by a Forensic Pathologist

When Ayala said the entrance wound was “under” the button, did he mean it was beneath the button, as in the button was covering the wound, or did he mean “below” the button, as in its position relative to the button higher up on the sweatshirt?

I am picturing GZ using the muzzle of the gun to lift the button, as in prying it upward (perhaps accidentally) as he pulled the sweatshirt down. I believe this would be an even more damning scenario.

Sure would be nice to know if the puncture marks from the pinning mechanism on the back of the button are still visible in the fabric of the hoodie.

When Ayala said the entrance wound was “under” the button, did he mean it was beneath the button, as in the button was covering the wound, or did he mean “below” the button, as in its position relative to the button higher up on the sweatshirt?

Thank You, Professor.

As to the above, who knows? I thought about what you’re asking and finally decided I would prefer to believe an officer of the law was literate enough to have used the word “below” as opposed to “under” in the scenario you describe.

I’m picturing George Zimmerman grabbing the front of the hoodie to restrain Trayvon from fleeing, and in doing so, displaced and stretched the garments downward to create the misalignment of the holes, AND allowed the gunshot wound to be under the button when released to spring back upward.

Whether Trayvon was standing, or on his back, it’s the ONLY positioning and action that I can see to allow ALL the simultaneous gunshot qualifications contained in the evidence.

-It accounts for the distance between clothing and skin for contact shot vs intermediate.

Not sure how to word this without offending snakeoil sales men.
Mark Omara is the reason lawer jokes are written he is a walking talking oxy moron,An makes a snakeoil con man off yore,
Look like respectfull entepenours.

Take over the case bounceing up an down on his offices lawn.
Boasts of all the new eqipment he has to install for case of this magnatude.
Sounded almost giddy as he talks of the multiple calls from all over the world.
An we see his charecter encapsulayed with things.
Material things.What he says he wont do .
He then does like I wont try this case in the court of public opinion.
An has done that right from the gettgo an is continueing to do so.
Says he wont make this case into a raceial issue.
And yet again has done the reverse of what he promises not to do.An gone out all to promote a raceist agena at every opertunity.
Even courting openly raceist blogs for help an advise..

He as foggens advocate has chosen not only defend Trayvons Murderer .
He has chosen to participate in his clients farcical story/lie/bs/?.
Also to attack the child victims reputation his intent to kill foggen with his bare hands .
After doing more than he needed to do to keep distance between himself an the Creepy Dude following him.
You are asking people that this child suddenly without provication or need.
Sudenlly loses all of his fear,An heads back to kill this creepy dude with a bag of candy.
An a can of juice.
If I were a first day first minute just out of Law School Attorney and a client told me the version or one of the versions.
He has been recounting as his version of events.

I wouldnt beleive his story Id tell him why I didnt beleive his story an then Id advise him to beg for a plea.
The best you can hope for is the chance to see the sky again as a free man one day.
Some thing you deneid your victim from seeing again.An as no doubt he would refuse my offer we would part ways.Like NeJame did like J Baez did.
An that double act he scooted out on.
Lots of attorneys heard fogens tale.
And just said no.
But not M Omara he jumped on board the magical mystery tour

That damn ugly monster of a B*****D should have his charges upped to first degree murder instead of what he is charged with now. when he left his vehicle, he had every intention of killing this seventeen year old kid.

For those who decided to lie for him, knowing exactly what he did because they witnessed it, they should be facing some charges of their own. Fogen, you can sit your fat ass in court and cry all you want to, those are not the only tears that you will be shedding in the days, months and years to come. BTW, they will only keep your fat ass in protective custody for just so long a period of time. and, if someone wants to get to you bad enough, they will find a way!

@ladystclaire
I felt from the first time I heard the NEN call that this was premeditated murder. That SOB was on the hunt and he was NOT letting Trayvon get away. I also think that he watched Trayvon for a while before he called in, that phone call was the set up to the murder.

Ladystclaire
BTW, they will only keep your fat ass in protective custody for just so long a period of time. and, if someone wants to get to you bad enough, they will find a way!
@
Prisons are full of despicable people and cons like fogen will be at the bottom of the heap.
Prison Officers dont want to be doing wet work an dealing with the paper work that acrues from fights stabbings murders suisides ect.

So prisoners classed as at risk vulnarable are housed in seprate wings from other inmates.Thease consist of Child Killers Sex Offenders peadophiles and of course informants.
Both for informing outside the prison criminal cases ect.
Or informing with in the Prison system.As the saying goes snitches get stiches.

So for all manner of reasons foggens new neighbours in his next an last move to a Gated Community
Will consist off disspicable peices of humanity worst offerings.
Day after day he will walk the yard with thease cons be locked up with thease people I doubt he will get a single cell.
Thats a privilige reserved either for the very bad in Americas vastly over crowded jails.
Super Max single cell.
Death Row Single cell.
Very priviliged con trustee maybe single cell.

An fogen will not be in any of the above catagorys..
He will probably be moved into a 4 person cell built origanly for two.
Two double beds an three new freinds to tell his tales to .
One stainless steel toilet an no extractor fan he will come to dread chilee con carni day.
If he thought he had it tough when remanded with out bond .
He will be in for an entire new culture shock when he hits the big house.

When fogen or anybody retelling you a story tells you why something didnt happen.
They are lieing an the thing they say never happened or couldnt have happened because of xyz they are lieing.

When fogen is on the non emergancy call he made a comment re the button.
The button was such a big deal to fogen that he pictures it in his mind as he pulled the trigger an murdered a child.
Just as LMPapa shows the button was on Trayvons hoodie an the button was not shot through.
Thats why when he is being intervued by Serino an listening to his non emergency call play out.
When he hears himself say an he is wearing a button.

His reptilian brain sprang into action as he re calls the murder he keeps seeing that button.
Therfore he blurts out …Button I dont remember even or ever seeing a button.
Or was it dont remember saying button either way its his attempt at self deneial
Practiced liars must first deceive themselfs.
To enaable them to plausably lie to others.
By fogen denying the button.
Makeing it an object of no significance ..button was he even wearing a button cant remeber.

This proves that this object is of huge significance to him.
Wich of course it is as it is as he fixated on it as part of his gangbanger mentality he had profiled Trayvon an he was in his own version of C O P S In his imagination.
An when the bad boy bad boy what ya gonna do.
Started running that was all fogen needed for to arm chase an kill
Shooting right next to that big ole button that he plum done forgot about.
He thinks that if he can nochalantly lie about the button when in reality the buttton is emblazoned in his memory of the thrill of the kill.
Then he just so plain ole smart an no one no where will ever see how cunning he is.

Watching HLN news review of current case news of Zimmerman, guest lawyer commentator called MOM’s strategy brilliant lawyering. Another lawyer commentator agreed and said he thought Zimmerman would walk because this was a self-defense case. That makes me sick.

They also mentioned the primary witness for the prosecution “perjured” herself.

“Any lawyer who says Dee Dee committed perjury is either lying or grossly irresponsible for not not bothering to read what she said and comparing it to the Florida statutes.There is no excuse for being wrong about this.”

Two attorneys appeared on HLN today to comment on the Arias case and developments in the Zimmerman case. Can’t remember their names but I was sickened by the comment MOM exhibited “brilliant” lawyering skills and that Zimmerman would probably walk because it was self-defense. I guess for money and exposure to appear on national TV, lawyers will say anything without doing homework on the evidence or Florida law.

Since zimmerman is not having stand your ground hearing should his bond be revoked what does law say about that since he is going the other way something is wrong he Ishould be locked up two sided law like god and devil is fighting zimmerman cant win god is in control justin for trayvon

Since zimmerman is not having stand your ground hearing should his bond be revoked what does law say about that since he is going the other way something is wrong he Ishould be locked up two sided law like god and devil is fighting zimmerman cant win god is in control justin for trayvon

as much as i think that florida’s laws regarding bonding are lax (although zimmerman’s became much harsher by his own actions), there would be no reason to revoke bond because of waiving an immunity hearing. the defendant was granted bond with conditions which would be in effect until trial – absence of the immunity hearing would not alter this.